Ngawati v Police
[2022] NZHC 2156
•29 August 2022
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2022-409-111
[2022] NZHC 2156
BETWEEN HARE WILLIAM NGAWATI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 August 2022 Appearances:
A J McKenzie for Appellant
G E R Alloway for Respondent
Judgment:
29 August 2022
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 29 August 2022 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
NGAWATI v NEW ZEALAND POLICE [2022] NZHC 2156 [29 August 2022]
[1] The appellant, Mr Hare Ngawati was sentenced by Judge Hix in the District Court to 22 months’ imprisonment on the following charges:
(a)possession of a pistol without lawful purpose;1
(b)possession of ammunition without lawful purpose;2
(c)possession of a class A drug (methamphetamine);3
(d)possession of a pipe for consumption of methamphetamine;4 and
(e)breach of release conditions.5
[2] Mr Ngawati appeals this decision on the grounds the Judge erred by uncritically adopting the starting point given in the sentencing indication (which Mr Ngawati had rejected), and which was, in any event, too high, leading to a manifestly excessive sentence.
Facts
[3] The breach of release conditions charge relates to Mr Ngawati’s multiple failures to report to Community Corrections at the required time, beginning in late 2021.
[4] On the evening of 30 January 2022, police stopped Mr Ngawati’s vehicle. He was identified as having an active warrant for his arrest, a search of the car was undertaken, and Mr Ngawati was placed under arrest.
[5] The search of the car revealed a revolver-style .22 pistol with the hammer pulled back and a round in the chamber. Seven rounds of ammunition were in the
1 Arms Act 1983, s 45(1); maximum penalty 4 years’ imprisonment or a fine not exceeding $5,000.
2 Arms Act, s 51(1); maximum penalty 3 years’ imprisonment or a fine not exceeding $4,000.
3 Misuse of Drugs Act 1975, s 7(1)(a) and (2); maximum penalty six months’ imprisonment and/or a fine not exceeding $2,000.
4 Misuse of Drugs Act, s 13(1)(a) and (3); maximum penalty 1 year imprisonment and/or a fine not exceeding $500.
5 Parole Act 2002, s 71(1); maximum penalty 1 year imprisonment or a fine not exceeding $2,000.
pistol’s cylinder magazine. Police also found two small quantities of methamphetamine and a glass pipe.
Principles on appeal
[6] Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied that there has been an error in the imposition of the sentence and that a different sentence should be imposed.6 The focus is not on the process by which the sentence was reached, but on the correctness of the end result.7 In making this assessment, appellate courts do not interfere with the legitimate exercise of judicial discretion or indulge in mere tinkering with the sentence.
Sentencing indication
[7] On 4 April 2022, Mr Ngawati received a sentencing indication from Judge Couch in relation to the same charges, plus one more. The Judge took the Arms Act offences as the lead charges and took a starting point of two years and three months’ imprisonment to reflect that:
(a)the gun was loaded and able to be used immediately;
(b)it was within easy reach of the defendant;
(c)he was driving through the city centre; and
(d)there was premeditation.
[8] While the defendant submitted a letter which said he intended to use the weapon on himself, the Judge at the sentencing indication noted, “I treat that with some caution but take it into account.”
6 Criminal Procedure Act, ss 250(2) and 250(3).
7 Ripia v R [2011] NZCA 101 at [15].
[9]An uplift of four months was applied for a charge now abandoned.
[10] Uplifts of two months were applied in respect of both the drug offending and the breach of parole. This led to a cumulative starting point of two years and 11 months’ imprisonment but, with a reduction for totality, the starting point was reduced to two years and eight months’ imprisonment.
[11] Addressing personal factors, the Judge uplifted the sentence by five per cent for offending while subject to sentence and eight per cent for previous convictions before applying a 20 per cent discount for the guilty pleas. The Judge noted this led to an end point of two years and six months’ imprisonment, although that would be subject to any further mitigating factors which became apparent at sentencing. That sentence indication was rejected, but guilty pleas were entered on the same day on the charges which are the subject of this appeal.
District Court decision
[12] Mr Ngawati came before Judge Hix on 14 June 2022 for sentencing. The Judge referred to the sentencing indication and identified there was an issue as to what extent, if any, he should take into account the sentencing indication. He concluded that the Court should not simply ignore the previous sentencing indication exercise, but should ensure that changes in circumstances should be reflected in his sentencing exercise. The Judge then proceeded to adopt the sentence indication’s starting point and uplifts but made adjustments to reflect the charge that had been dropped. This led to a starting point of 30 months’ imprisonment.
[13] The Judge adopted the uplift of 13 per cent for personal aggravating factors and the guilty plea discount of 20 per cent. The Judge then carefully considered the s 27 report and other material concerning Mr Ngawati’s offending, addiction and rehabilitative potential. A further 20 percent discount was applied to reflect s 27 matters.
[14] The Judge reached an end sentence of 21 months’ imprisonment, though made provision for leave to apply for home detention to an approved residential
programme.8 The Judge also ordered standard and special conditions (as contained in the probation officer’s report) to apply for six months on release.
Submissions
Appellant’s submissions
[15] Mr McKenzie, for Mr Ngawati, submits the Judge erred in adopting the sentencing indication. He argues the Judge used the sentencing indication too uncritically, only making minor tweaks to reflect the amendment to the charges. He contends the Judge indicated, incorrectly, that he was bound to apply the rejected sentence indication.
[16] Against this error, Mr McKenzie suggests the starting point of two years and three months’ imprisonment was manifestly excessive. Mr McKenzie notes Mr Ngawati’s offending was mitigated by his suicidal ideation, something he argues the Judge failed to appropriately account for in light of corroborative evidence. A starting point of 18 months’ imprisonment would have been appropriate.
[17] Mr McKenzie does not take issue with the other uplifts, totality adjustments or discounts applied by the Judge, but he says with the adjusted starting point, there should have been an end sentence of 14 months’ imprisonment.
Respondent’s submissions
[18] Mr Alloway submits that, while the sentence is somewhat unusual insofar as the sentence indication was declined, guilty pleas were entered the same day, and the sentencing Judge elected to have regard to the indication, it was not in error. He argues there is no rule against judges having regard to sentence indications. Indeed, to do so reflects the sentencing principle at s 8(e) that consistency in sentencing offenders is desirable. The Judge made adjustments where appropriate, and there is no evidence he unduly fettered his discretion.
8 This reflects a generous rounding down as the net 27 per cent discount leads to a sentence of
21.9 months’ imprisonment.
[19] The Crown accepts the starting point of 27 months was stern but submits it was within range.9 This starting point did not need to be adjusted to account for the suggestion of Mr Ngawati’s suicidal ideation. Mr Alloway notes the ADAS assessment’s conclusion that Mr Ngawati had a good mental state and no suicidal ideation as well as other inconsistencies in Mr Ngawati’s self-reporting of suicidal thoughts and attempts. In any case, Mr Alloway argues, the end sentence was not manifestly excessive as the uplifts which were applied, adjusted for totality, were favourable to Mr Ngawati.
Analysis
Did the Judge err in considering the sentence indication?
[20] I do not accept Mr McKenzie’s submissions that the Judge erred in relying on the sentence indication. Adoption of sentencing indications is a regular and effective practice in sentencing.10 In the present case, the District Court Judge did not surrender his discretion. Rather, he assessed “to what extent” he should consider the indication. He concluded it would be in error to “simply ignore the previous sentence indication”, and he took it as his starting point but made adjustments where appropriate.
[21] In my view, there can be no error in adopting the starting points from a previous sentencing indication as long as those starting points are in range and the end sentence is not manifestly excessive. While a subsequent Judge is obviously not bound by a sentencing indication that has been rejected, it would be expected that any material (as opposed to minor) deviation from the sentencing indication would be supported by reasons and the end sentence, of course, assessed as appropriate.
Was the sentence manifestly excessive?
[22] The primary challenge to sentencing was in relation to the starting point for the Arms Act charges, being possession of a pistol and ammunition. The following factors
9 Torea v R [2011] NZCA 96.
10 Padgett v New Zealand Police [2017] NZHC 2818; Rerekura v New Zealand Police [2021] NZHC 273; Fataiki v New Zealand Police [2021] NZHC 3446; and Pihema v New Zealand Police [2017] NZHC 1672.
identified by Judge Couch were relevant aggravating features to be taken into account in fixing the starting point:
(a)the gun was able to be used immediately, having the hammer cocked and a round chambered;
(b)it was within easy reach of Mr Ngawati;
(c)Mr Ngawati was in a public place, being the city centre; and
(d)a degree of premeditation may be inferred.
[23] In respect of the suggestion that the firearm was present for self-harm, Mr McKenzie says the sentencing Judge should have placed more weight on it as, by the date of sentencing, there was more corroborative material in the s 27 report and the pre-sentence report. However, these do not, in my view, point to that being the purpose of possessing a loaded firearm which was ready to fire.
[24] The alcohol and drug report assessed Mr Ngawati as being in a good mental state and denying any suicidal ideation. The s 27 report noted Mr Ngawati’s present mental stability, though does record a self-reported suicide attempt in November 2021 as well as depression and PTSD. The pre-sentence report, which was particularly comprehensive, recorded Mr Ngawati as acknowledging the pistol was in the car “for protection” due to concerns stemming from his partner who was dealing drugs. In my view, the suggestion the pistol’s function was primarily for infliction of self-harm was appropriately treated with caution and did not materially reduce the gravity of the offending.
[25]In fixing the appropriate starting point, I note the following cases:
(a)R v Richardson:11 Here, police had found two firearms, one at the defendant’s property and a loaded shotgun in the car driven by the
11 R v Richardson CA450/02, 25 March 2003.
defendant when arriving at his property. A starting point of two years’ imprisonment was considered “merciful” on appeal.
(b)Torea v R:12 During a police callout, a pistol was found under a cushion next to the defendant with a disengaged safety and three bullets loaded, one of which was lined up in the firing position. There was also a gang element to the offending. A starting point of two years and six months was adopted.
(c)Smith v Police:13 A search warrant executed at Mr Smith’s property uncovered a pistol and a rifle, both of which were loaded and with a round in the firing chamber. The starting point was 18 months’ imprisonment.
(d)Pue v R:14 A vehicle’s search consequent to a drug-busting operating led to a loaded revolver being found underneath Mr Pue’s seat. A starting point of 18 months’ imprisonment was adopted.
(e)Chong v R:15 Mr Chong was a patched member of the Mongols gang. When his vehicle was stopped at a time of heightened gang tensions, a loaded .357 Magnum pistol was discovered. The Judge adopted a starting point of two years.
(f)Gunbie v Police:16 The defendant was found with a .22 pistol loaded with eight bullets, along with shotgun ammunition. A starting point of
27 months on the combination of the possession of the pistol (24 months) and the possession of other ammunition (three months) was reduced on appeal to 18 months. This was because the first instance Judge was found to be in error about the extent of additional ammunition found and a distinction was drawn between possession of
12 Torea v R, above n 9.
13 Smith v Police [2014] NZHC 2196.
14 Pue v R [2014] NZCA 273.
15 Chong v R [2022] NZHC 869.
16 Gunbie v Police [2019] NZHC 250.
a loaded firearm in the home environment (as in Mr Gunbie’s case) and possession of a loaded firearm in a vehicle, which was considered more serious.
(g)Herewini v R:17 Mr Herewini was in a car which was pulled up by police. They located a loaded sawn-off shotgun under the front passenger seat. The Judge adopted a starting point of two years and six months which was upheld on appeal, with the appeal Judge noting that the fact the weapon was readily accessible in the car was an aggravating factor as recognised in earlier cases, and a starting point of two years and six months was “well within the Judge’s discretion”.18
[26] The starting point applied in the present case is clearly towards the upper limit of what was available to Judge Hix in the District Court. Despite the multiple aggravating factors, it lacked the gang element given weight in Torea. However, it cannot be said to be outside the available range of 18 months to two years six months’ imprisonment demonstrated by the cases discussed above.
[27] In any event, the focus on appeal is whether the end sentence was manifestly excessive. It appears that the Judge uplifted the sentence by only three months for the balance of charges (being the Misuse of Drugs Act charges and the breach of parole), to reach a sentence of 30 months. The Judge then took into account uplifts for offending on parole and criminal history totalling 13 per cent, but applied a 20 per cent discount for guilty pleas. A further discount of 20 per cent was applied for the factors identified in the s 27 report. I accept a 20 per cent reduction to reflect the guilty plea was appropriate, noting it did not come at the earliest opportunity, and the discount for the s 27 report was relatively generous, as was the fact the sentence was rounded down in favour of the defendant (from just under 22 months to 21 months).
[28] Accordingly, while acknowledging the sentence on the Arms Act offending was at the upper end of the available range, the end sentence, which facilitated the possibility of home detention, was not manifestly excessive.
17 Herewini v R [2014] NZHC 2396.
18 At [28].
Result
[29]Accordingly, the appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Copy To:
Mr A J McKenzie, Barrister, Christchurch
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